OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW
A jury found appellant guilty of unlawfully carrying a weapon, namely, a handgun. The trial court assessed punishment at 90 days confinement in the Harris County Jail, probated for one year, and a $300 fine. The
The State has again petitioned for discretionary review (which we granted), and it contends that: (1) including the detention issue in a sufficiency review is not appropriate because Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) applies only to the elements of the criminal offense, and (2) even if there were error, it is merely trial error because the instruction was erroneous and the State objected to including the detention issue in the jury charge. Appellant responds that sufficiency of the evidence is measured by the jury charge, citing Boozer v. State, 717 S.W.2d 608, 610 (Tex.Crim.App.1984), and he argues that the State failed to properly object to the erroneous jury instruction. We will reverse.
The present issue arises out of a line of cases beginning with Benson v. State, 661 S.W.2d 708 (Tex.Crim.App.1982)(opinion on State's second motion for r'hrg), cert. denied, 467 U.S. 1219, 104 S.Ct. 2667, 81 L.Ed.2d 372(1984). In Benson, we held that the sufficiency of the evidence is measured by the indictment as incorporated into the jury charge. Id. at 715. We decided that the State's failure to object to an unnecessary narrowing, in the jury charge, of the description of an element of the offense meant that the State was bound to prove the element as described, and a failure to do so would result in an acquittal due to insufficient evidence. Id. 715-716. Subsequently, in Boozer, we held that, by failing to object to an erroneously submitted accomplice witness instruction, the State acquiesced in an increase in its burden of proof, requiring corroboration of testimony that would not have needed corroboration absent the instruction.
Generally, this sufficiency standard has been limited to situations in which the increased burden upon the State appears in the application paragraph of the charge. Plata v. State, 926 S.W.2d 300, 304 (Tex. Crim.App.1996). But, we have also utilized that standard when an abstract portion of the charge functions as a kind of application paragraph. Arceneaux v. State, 803 S.W.2d 267, 271 (Tex.Crim.App.1990) In Arceneaux, the jury charge contained an instruction requiring the jury to find "beyond a reasonable doubt that the exhibit introduced in evidence by the State is cocaine" before the defendant could be convicted. Id. We held that, by failing to object to the cocaine instruction, the State assumed the (unnecessary) burden to offer a cocaine exhibit into evidence. Id. Because no cocaine exhibit had been introduced into evidence (the cocaine had been destroyed through testing), we found the evidence to be insufficient to support the conviction and ordered a judgment of acquittal. Id. at 271-272.
As in Arceneaux, the present charge involves the use of an application-type charge in connection with the admission of certain
(Emphasis added). The present situation is in all relevant respects identical to Arceneaux. Although Arceneaux involved evidence that was not admitted and the present case involved evidence that arguably should not have been admitted, we do not find that to be a significant distinction. Nor do we perceive a material distinction between the Arceneaux instruction requiring the admission of evidence before the jury can be permitted to find guilt and the present instruction which requires the jury to acquit if the evidence is illegally obtained. In either case, the defendant's guilt turns, according to instruction, upon the status of a particular piece of evidence. As we stated in Arceneaux, "the wording ... of the charge may also authorize the trier of fact to reach or not reach the ultimate issue in the case." Id. at 271. (Ellipsis and emphasis added).
Arceneaux would appear to require an acquittal due to insufficient evidence as the Court of Appeals has done unless we find that the instruction was erroneous and that the State properly objected. But the State's contention that Jackson, by its wording, applies only to elements of the offense is a cogent one. When, as in the present case, our precedents appear to require us to stray far afield from the holding that originated a constitutional doctrine, we should reexamine those precedents to determine their continuing validity. In conducting such a reexamination, however, we should take into account the interests underlying the rule of stare decisis: Often, it is better to be consistent than right. But, when a particular courtmade rule does not produce consistency and/or the rule regularly produces results unanticipated by the constitutional doctrine on which it is based, then we should be prepared to disavow the rule and overrule the line of cases embodying the rule. With these considerations in mind, we now reexamine the court-made rule established in the Benson/Boozer line of cases.
For its holding, Benson relied upon federal constitutional precedent.
Arceneaux, 803 S.W.2d at 269-270. In Benson, we also relied upon Forman v. United States, 361 U.S. 416, 80 S.Ct. 481, 4 L.Ed.2d 412 (1960) and Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) for the proposition "that legal insufficiency means that the government's case was so lacking that it should not have ever been submitted to the jury." Benson, 661 S.W.2d at 715-716 (internal quotation marks omitted; emphasis in Benson). We further explained that "insufficiency means that the State's case could be cured or satisfied only by the introduction of new evidence to prove, if possible, their theory of the case." Id. at 716 (emphasis added).
A review of the relevant precedents shows that the federal constitutional cases relied upon in Benson and other cases as the foundation for the Benson/Boozer rule do not in fact support that rule. Under Jackson, the sufficiency review question is "whether, after viewing the evidence in the light most favorable
Further, the Supreme Court case of Forman, cited by Benson in support of its holding, is completely inconsistent with the Benson/Boozer rule. In Forman, the jury charge erroneously required the jury to find a "subsidiary conspiracy" before convicting the defendant, and the government failed to object. 361 U.S. at 422 & 424, 80 S.Ct. at 485 & 486. See also, Stephens v. State, 806 S.W.2d 812, 821 (Tex.Crim.App.1990)(McCormick, P.J. dissenting), cert. denied, 502 U.S. 929, 112 S.Ct. 350, 116 L.Ed.2d 289 (1991). No subsidiary conspiracy was ever proven. Forman, 361 U.S. at 424, 80 S.Ct. at 486. See also Stephens, 806 S.W.2d at 821. Nevertheless, the Supreme Court held that a judgment of acquittal was inappropriate, noting that: "Here there was no lack of evidence in the record.... The jury was simply not properly instructed." Forman, 361 U.S. at 426, 80 S.Ct. at 487 (ellipsis inserted and internal quotation marks omitted). See also Stephens, 806 S.W.2d at 821. Forman viewed the more burdensome charge as mere trial error rather than a sufficiency of the evidence problem. In a concurring opinion, Justice Whittaker went even further, opining that the trial error was harmless:
361 U.S. at 429-430, 80 S.Ct. at 488-489 (Whittaker, J. concurring)(ellipses inserted).
Moreover, subsequent developments in federal case law regarding the Jackson standard have failed to lend any support to the reasoning of the Benson/Boozer line of cases; in fact, the opposite has occurred. The Supreme Court has never imposed on any jurisdiction a requirement to measure the sufficiency
The Benson/Boozer rule has been characterized as "among the most controversial of the last decade." Mireles v. State, 901 S.W.2d 458, 466 (Tex.Crim.App.1995)(Meyers, J. dissenting). The rule has been strongly criticized for being inconsistently applied. Jones v. State, 815 S.W.2d 667, 674 (Tex.Crim.App.1991)(McCormick, P.J. dissenting); Morrow v. State, 753 S.W.2d 372, 382 (Tex.Crim.App.1988)(Onion, P.J. dissenting). Presiding Judge McCormick criticized the Court for being inconsistent on whether sufficiency of the evidence should be measured solely by the application paragraph or by the charge as a whole. Jones, 815 S.W.2d at 674. His criticism was on target, as this Court has vacillated between the two positions. In Garrett v. State, we held that evidentiary sufficiency should be measured by the entire charge rather than solely by the application paragraphs. 749 S.W.2d 784, 802-803 (Tex.Crim.App.1986)(opinion on State's Motion for Rehearing). At least one court of appeals relied upon that holding, only to be reversed by this Court. Jones v. State, 774 S.W.2d 7, 11-12 (Tex.App.—Dallas 1989), reversed, 815 S.W.2d 667 (Tex.Crim. App.1991); Biggins v. State, 824 S.W.2d 179, 180 (Tex.Crim.App.1992). To complicate matters further, we have held that abstract portions of the charge that act like an application paragraph must be used in measuring evidentiary sufficiency. Arceneaux, 803 S.W.2d at 271 (critical question is whether a paragraph "authorizes a conviction").
Consequently, the rule that evidentiary sufficiency is measured by the application paragraph of the charge has been difficult to apply. We have reversed court of appeals decisions for failing to determine accurately what paragraphs of the charge are application paragraphs or "authorize a conviction." Jackson v. State, 898 S.W.2d 896, 899-900 (Tex.Crim.App.1995); Arceneaux, 803 S.W.2d at 271-272. The futility of these exercises becomes even more apparent in light of our recent observation that "it may well be that application paragraphs are an anachronism, and that jurors could perform just as well without them." Plata, 926 S.W.2d at 304.
Former Presiding Judge Onion complained that the Benson/Boozer rule produced different
The inconsistency with respect to measuring sufficiency is especially apparent when comparing different scenarios involving a variance between the indictment and the jury charge. If the indictment is facially complete,
In addition to producing uncertainty and inconsistency, the Benson/Boozer rule is inherently at odds with the purpose of the Jackson sufficiency standard. The Jackson standard was established to ensure that innocent persons would not be convicted. Jackson, 443 U.S. at 323, 99 S.Ct. at 2791 ("The question whether a defendant has been convicted upon inadequate evidence is central to the basic question of guilt or innocence"). The Benson/Boozer rule permits, and in fact contemplates, that persons who are guilty of the crime charged and convicted by a jury may nevertheless be acquitted on appeal because the State failed to object to an erroneous and/or unnecessary instruction favorable to the defendant. In essence, the rule permits the greatest form of relief in the criminal system—an acquittal—to be granted because the defendant received a windfall in the jury instructions.
The Benson/Boozer rule is based upon a misinterpretation of federal constitutional precedent, results in complex and inconsistent standards for reviewing sufficiency of the evidence, and is fundamentally at odds with the purpose behind the Jackson standard of sufficiency review. Therefore, we overrule the Benson/Boozer line of cases and abolish the standard of sufficiency review that they formulated. No longer shall sufficiency of the evidence be measured by the jury charge actually given. Nevertheless, we recognize that measuring sufficiency by the indictment is an inadequate substitute because some important issues relating to sufficiency—e.g. the law of parties and the law of transferred intent—are not contained in the indictment. Boozer, 717 S.W.2d at 610 n. 4;
Turning to the present case, we find that the jury instruction concerning the legality of appellant's detention should not have been used to measure the sufficiency of the evidence. The legality of appellant's detention is not an element of the offense charged but merely relates to the admissibility of evidence. Moreover, a hypothetically correct jury charge would not have made the admissibility of a particular piece of evidence a precondition for conviction.
We vacate the opinion of the Court of Appeals and remand this cause to that Court to apply the correct standard of review in analyzing appellant's points of error regarding the sufficiency of the evidence.
MEYERS, Judge, concurring.
The majority expressly "overrule[s] the Benson/Boozer line of cases," and describes that line of decisions as holding that "the sufficiency of the evidence is measured by the jury charge if that charge is more favorable to the defendant than the law requires and if the State fails to object." Majority opinion at 235. But in this case the State objected. Therefore the majority's holding is dicta and I decline to join it. I concur in the judgment of the Court, however, because application of the controlling caselaw calls for a reversal of the judgment of the Court of Appeals.
The trial court erroneously included in the jury charge an instruction on the legality of appellant's detention (whether or not appellant had been driving his vehicle in a suspicious manner, thereby justifying a stop). The State objected at trial to the inclusion of the charge. On appeal, appellant claimed the evidence was insufficient to support the jury's finding that appellant had been driving in a suspicious manner. The Court of Appeals noted that the legality of a detention is normally "irrelevant" for purposes of a sufficiency review, but decided to "assume" the charge was correct and review the sufficiency of the evidence to support it. Upon reviewing the evidence, the Court of Appeals determined it was insufficient to support "the jury's determination that appellant was driving his vehicle in a suspicious manner," reversed the judgment of the trial court, and ordered a judgment of acquittal. Malik v. State, No. 14-92-31490 slip op., 1996 WL 65639 (Tex.App.—Houston [14th Dist.] Feb. 15, 1996)(opinion on remand)(unpublished).
We granted the State's petition on the following ground for review:
The State argues the Court of Appeals erred in its sufficiency analysis in two respects: (1) Jackson v. Virginia does not apply here since the legality of the detention is not one of the "elements of the offense"; and (2) since the State objected to the charge, the
The State is correct on its second argument.
Ortega, 668 S.W.2d at 705 n. 10. We further explained in Stephens that when the charge imposes a greater burden on the State than placed upon it by the controlling statute, and the State does not object to the increased burden, it can be assumed that the State voluntarily shouldered that burden. But if the State objects to the greater burden, then the increased burden is not assumed by the State so as to bar it from retrying the case if the evidence is insufficient under the increased burden in the charge.
Stephens, 717 S.W.2d at 341.
The State argues that an article 38.23 instruction is required only if there is a factual dispute about how the evidence was obtained and there was no factual dispute in this case.
The State is exactly right. The instruction should not have been given because there was no dispute about the facts leading to the stop. By objecting to the charge, the State did not assume the greater burden. See Ortega, supra; Stephens, supra. The Court of Appeals erred in reversing and ordering a
The majority does not mention the Court's opinions in Ortega and Stephens, even though those cases provide an exception to application of the Benson/Boozer doctrine which applies in this case. The State does not cite to Benson and Boozer, much less present an argument for overruling those opinions. It has always been my understanding that this Court should not strain to overrule precedent when not called for on the facts at hand, but should wait for the appropriate case where the parties raise and have the opportunity to argue the issue, and where the precedent to be overruled would be otherwise be applicable and control the disposition of the case at hand. See Blanco v. State, No. 098-97 (State's pet. granted April 30, 1997)(State urges Court to re-examine Benson/Boozer). As a believer in the adversarial system, I would wait for the appropriate case where the Court could entertain the best arguments on the issue from both sides of the table before rendering a decision.
I concur in the judgment of the Court.
BAIRD and OVERSTREET, JJ., join.
Boozer, 717 S.W.2d at 614 (Clinton, J., concurring in denial of State's motion for leave to file motion for rehearing).
We have interpreted this provision as only requiring a charge thereunder "if there is a factual dispute as to how the evidence was obtained." Thomas v. State, 723 S.W.2d 696, 707 (Tex.Crim. App.1986). In other words, a defendant is not entitled to a charge if the defendant does not controvert or challenge the State's facts, as opposed to the legal conclusions to be drawn from the facts. Id.
As the court correctly explained in [another case] when faced with essentially the same facts:
Id. at 520(emphasis in original).